Rangel v. Boehner

Decision Date08 May 2015
Docket NumberNo. 14–5012.,14–5012.
PartiesCharles B. RANGEL, Appellant v. John A. BOEHNER, et al., Appellees.
CourtU.S. Court of Appeals — District of Columbia Circuit

Jay Goldberg argued the cause and filed briefs for the appellant.

Isaac B. Rosenberg, Assistant Counsel, United States House of Representatives, argued the cause for the appellees. Kerry W. Kircher, General Counsel, William Pittard, Deputy General Counsel, Todd B. Tatelman, Mary Beth Walker, Eleni M. Roumel, Assistant Counsel, John M. Faust and Richard Sauber were with him on brief. Mark T. Stancil entered an appearance.

Before: HENDERSON, GRIFFITH and MILLETT, Circuit Judges.

Opinion

Opinion for the Court filed by Circuit Judge HENDERSON.

KAREN LeCRAFT HENDERSON, Circuit Judge:

Public service has its benefits and its burdens. Congressmen, for example, enjoy absolute immunity from suit for their conduct in the legislative arena. That same immunity, however, prevents them from airing their legislative disagreements in a judicial forum. Representative Charles Rangel asks this Court to review his 2010 censure by the United States House of Representatives. But the Constitution—specifically, the Speech or Debate Clause—prevents us from doing so. Rangel must vindicate his reputation in the one court that can hear his claim: the court of public opinion. We affirm the district court's dismissal of his complaint.

I.

Charles B. Rangel is the United States Representative for the 13th Congressional District of New York, a position he has held for more than four decades. In 2007, the Democratic Party assumed control of the House and Rangel became chairman of the Ways and Means Committee. Shortly into his tenure, however, Rangel was accused of numerous ethical improprieties. The House Committee on Ethics (Ethics Committee)1 empanelled investigatory and adjudicatory subcommittees to look into the allegations. In November 2010, the adjudicatory subcommittee found by “clear and convincing” evidence that Rangel had committed eleven ethical violations, including improper solicitation of donations, failure to disclose financial information, improper use of House resources, receipt of improper favors and failure to pay taxes. See H.R.Rep. No. 111–661, pt.1, at 7–14 (2010). The full Ethics Committee adopted these findings and recommended a punishment of censure.2 The House agreed by a vote of 333–79; and on December 2, 2010, the House Speaker read the censure resolution on the House floor while Rangel stood in the well. See 156 Cong. Rec. H7891–99 (daily ed. Dec. 2, 2010).

Seven months later, Politico.com published an article that implicated the Ethics Committee's investigation of Rangel. See John Bresnahan, Did Ethics Staff Taint Maxine Waters Probe?,Politico (July 18, 2011 4:40 AM), http://www.politico.com/news/stories/0711/59225.html. The article contained a leaked memorandum authored by the Committee's former Chief Counsel. The memorandum claimed that two Ethics Committee staffers engaged in impermissible ex parte communications and distributed damaging information about Rangel to the Republican Members of the adjudicatory subcommittee. Rangel believes this back-channeling irrevocably tainted his hearing and, ultimately, his censure.

Rangel filed a complaint in the district court, challenging his censure as a violation of the House Rules and the Fifth Amendment Due Process Clause. He sued the former Chair, Ranking Member and Republican Members of the House Ethics Committee; the former Chief Counsel and the two aforementioned Committee staffers; and, “to effectuate relief,” Compl. 10 ¶ 11, the current Speaker and Clerk of the House. The defendants responded with a joint motion to dismiss. The district court granted the motion and dismissed Rangel's complaint, concluding that (1) Rangel lacked Article III standing, (2) the complaint presented a nonjusticiable political question and (3) the defendants were immune from suit under the Speech or Debate Clause. See Rangel v. Boehner, 20 F.Supp.3d 148, 159–83 (D.D.C.2013). Our review is de novo. Barr v. Clinton, 370 F.3d 1196, 1201 (D.C.Cir.2004).

II.

The district court dismissed Rangel's complaint on three grounds—all jurisdictional. See Grocery Mfrs. Ass'n v. EPA, 693 F.3d 169, 174 (D.C.Cir.2012) (Article III standing); Gonzalez–Vera v. Kissinger, 449 F.3d 1260, 1262 (D.C.Cir.2006) (political question doctrine); Howard v. Office of Chief Admin. Officer of U.S. House of Reps., 720 F.3d 939, 941 (D.C.Cir.2013) (Speech or Debate Clause). We can therefore address them in any order. Sinochem Int'l Co. v. Malaysia Int'l Shipping Corp., 549 U.S. 422, 431, 127 S.Ct. 1184, 167 L.Ed.2d 15 (2007) (“there is no mandatory sequencing of jurisdictional issues” (quotation marks omitted)). We begin and end with the simplest ground to affirm the district court: the Speech or Debate Clause. See La. Envtl. Action Network v. Browner, 87 F.3d 1379, 1385 (D.C.Cir.1996) ([A]s precedent and prudence counsel us to avoid unnecessary dicta, ... we see substantial reason not to review each element of justiciability in a dispute that we ultimately conclude does not lie within our jurisdiction.” (citations omitted)).

The Speech or Debate Clause provides:

The Senators and Representatives ... for any Speech or Debate in either House ... shall not be questioned in any other Place.

U.S. Const., art. I, § 6, cl. 1. The English Bill of Rights, enacted in the wake of the Glorious Revolution of 1688, contained a nearly identical provision. See Bill of Rights, 1689, 1 W. & M., 2d Sess., c. 2 ([T]he freedom of speech and debates or proceedings in Parliament ought not to be impeached or questioned in any court or place out of Parliament.”). On this side of the Atlantic, the Philadelphia Convention adopted the “speech or debate” clause without much of either. See United States v. Johnson, 383 U.S. 169, 177, 86 S.Ct. 749, 15 L.Ed.2d 681 (1966) (“The Speech or Debate Clause of the Constitution was approved at the Constitutional Convention without discussion and without opposition.”); Tenney v. Brandhove, 341 U.S. 367, 372, 71 S.Ct. 783, 95 L.Ed. 1019 (1951) (“Freedom of speech and action in the legislature was taken as a matter of course by those who severed the Colonies from the Crown and founded our Nation.”).

The Clause reflects the Founders' belief in legislative independence. United States v. Brewster, 408 U.S. 501, 524, 92 S.Ct. 2531, 33 L.Ed.2d 507 (1972) ([T]he purpose of the Speech or Debate Clause is to protect the individual legislator, not simply for his own sake, but to preserve the independence and thereby the integrity of the legislative process.”); see alsoJoseph Story, Commentaries on the Constitution of the United States § 863 (1833) (“freedom of speech and debate” is a “great and vital privilege,” “without which all other privileges would be comparatively unimportant, or ineffectual”). Although criminal liability was the “chief fear” of our forebears, Johnson, 383 U.S. at 182, 86 S.Ct. 749, the Speech or Debate Clause also provides absolute immunity from civil suit. Eastland v. U.S. Servicemen's Fund, 421 U.S. 491, 502–03, 95 S.Ct. 1813, 44 L.Ed.2d 324 (1975) ; see also Powell v. McCormack, 395 U.S. 486, 502–03, 89 S.Ct. 1944, 23 L.Ed.2d 491 (1969) ([T]he clause not only provides a defense on the merits but also protects a legislator from the burden of defending himself.”). The prospect of civil liability lessens the ability of the Members of the Congress to “represent the interests of their constituents,” Powell, 395 U.S. at 503, 89 S.Ct. 1944, and litigation itself “creates a distraction and forces Members to divert their time, energy, and attention from their legislative tasks,” Eastland, 421 U.S. at 503, 95 S.Ct. 1813. Such litigation also undermines the separation of powers. See id.; Johnson, 383 U.S. at 178, 86 S.Ct. 749 (Judiciary should not “possess directly or indirectly, an overruling influence over the [Congress] in the administration of [its] respective powers” (quoting The Federalist No. 48 (James Madison))).

The Supreme Court has consistently read the Speech or Debate Clause “broadly” to achieve its purposes. Eastland, 421 U.S. at 501, 95 S.Ct. 1813 ; see also Hutchinson v. Proxmire, 443 U.S. 111, 124, 99 S.Ct. 2675, 61 L.Ed.2d 411 (1979) (“the Court has given the Clause a practical rather than a strictly literal reading”). Although the Clause refers to “Senators and Representatives,” it also covers legislative aides. See Gravel v. United States, 408 U.S. 606, 618, 92 S.Ct. 2614, 33 L.Ed.2d 583 (1972). And although the Clause speaks of “Speech or Debate,” it extends further to all “legislative acts.” Doe v. McMillan, 412 U.S. 306, 312, 93 S.Ct. 2018, 36 L.Ed.2d 912 (1973). An act is “legislative” if it is “generally done in a session of the House by one of its members in relation to the business before it.” Kilbourn v. Thompson, 103 U.S. 168, 204, 26 L.Ed. 377 (1880). More specifically:

The heart of the Clause is speech or debate in either House. Insofar as the Clause is construed to reach other matters, they must be an integral part of the deliberative and communicative processes by which Members participate in committee and House proceedings with respect to the consideration and passage or rejection of proposed legislation or with respect to other matters which the Constitution places within the jurisdiction of either House.

Gravel, 408 U.S. at 625, 92 S.Ct. 2614.

We look to Rangel's complaint to determine whether he challenges legislative or nonlegislative conduct. Mitchell v. Forsyth, 472 U.S. 511, 528, 105 S.Ct. 2806, 86 L.Ed.2d 411 (1985). Broadly speaking, Rangel asks us to review a congressional disciplinary proceeding—a “legislative” matter that “the Constitution places within the jurisdiction of [the] House,” Gravel, 408 U.S. at 625, 92 S.Ct. 2614. See U.S. Const., art. I, § 5, cl. 2 (“Each House may ... punish its Members for disorderly Behaviour.”); Consumers Union of U.S., Inc. v. Periodical...

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